SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6965/02 by Andrey Andreyevich SAVINSKIY against Ukraine

The European Court of Human Rights (Second Section), sitting on 31 Ma y 2005 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr V. Butkevych , Ms D. Jočienė , Mr D. Popović , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 19 May 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andrey Andreyevich Savinskiy , is a Ukrainian national, who was born in 1969 and lives in the Village of Ponyatovka , Odessa region, Ukraine . He is represented before the Court by Mrs N. Avramenko , a lawyer practising in the city of Chernigiv . The respondent Government were represented by their Agents , Mrs V. Lutkovska and Mrs Z. Bortnovska .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant worked as a custom s officer at the Rozdilyanska Customs, Odessa Region, Ukraine .

On 24 July 2000 the applicant was charged with criminal offences and arrested. He remained in custody until 6 November 2000 .

On 6 November 2000 the applicant was sentenced by the Novozavodsky District Court of Chernigiv ( вирок Новозаводського суду м. Чернігів ) to three years ' imprisonment for the negligent performance of his professio nal duties and to a fine of UAH 400 [1] . At the same time , the court acquitted the applicant of other charges ( aiding and abetting in smuggling and tax evasion ) . By the same decision , the applicant was absolved from this sentence under the amnesty law of 11 May 2000 . This decision was not appealed and became final on 14 November 2000 .

On an un spec ified date , the President of the Chernigiv Regional Court lodged a request for a supervisory review of the judgment of 6 November 2000 , on the ground s of an erroneous qualification of the applicant ' s actions and an unreasonable acquittal of some criminal charges.

On 25 December 2000 the Presidium of the Chernigiv Regional Court allowed the request of its President, quashed the judgment of 6 November 2000 , and remitted the case for a fresh consideration.

On 29 January 2001 the Novozavodsky District Court of Chernigiv considered the case anew and sentenced the applicant to five years ' imprisonment , with two years ' probation , and a fine of UAH 1000 [2] . The court also found the applicant guilty of aiding and abetting in smuggling, an abuse of power and fraud.

On 1 March 2001 the Criminal Chamber of the Chernigiv Regional Court upheld the decision of the first instance court. This decision was final.

On an un spec ified date , the President of the Chernigiv Regional Court lodged a request for a supervisor y review of the judgments of 29 January and 1 March 2001, on the ground that the courts ha d not follow ed the instructions given in the previous decision of the Presidium of the Chernigiv Regional Court of 25 December 2000 about the qualification and severity of the sentence to be applied to the applicant.

On 19 March 2001 the Presidium of the Chernigiv Regional Court allowed the request of its President, quashed the decision of 29 January 2001 , and remitted the case for a fresh consideration. The Presidium found that the first instance court ha d not follow ed the said instructions and that the sentence was too lenient.

On 2 October 2001 the Novozavodsky District Court of Chernigiv considered the case anew and sentenced the applicant to five years ' imprisonment.

On 20 December 2001 the panel of three judges of the Supreme Court of Ukraine rejected the request of the applicant ' s lawyer for leave to appeal in cassation against the decision of 2 October 2001 .

On 9 July 2002 the Supreme Court of Ukraine allowed the applicant ' s cassation appeal and changed the decision of the first instance court. The court sentenced the applicant to two years ' imprisonment for the negligent performance of his professional duties. At the same time the court acquitted the applicant of the other charges ( aiding and abetting in smuggling and tax evasion ) . By the same decision , the applicant was absolved from this sentence under the amnesty law of 11 May 2000 .

B. Relevant domestic law and practice

At the material time, Chapter 31 of the Code of Criminal Procedure allowed a final and binding judgment to be subject to a supervisory review. The final judgment in a case could be appealed under the supervisory review procedure by the President of a Regional Court or the Supreme Court of Ukraine, the R egional P rosecutor o r the Prosecutor General of Ukraine and their Deputies (Article 384), and had to be considered by the Regional Court or the Supreme Court (Article 388). Under Article 385, if the appeal against the final judgment was to the detriment of the person thereby convicted or acquitted , it could be lodged only within a year after the impugned judgment had c o me into force. O therwise , the supervisory review appeal could be lodged at any time.

The supervisory review procedure was repealed in June 2001.

COMPLAINTS

The app licant complained under Article 4 of Protocol No. 7 to the Convention that he had been tried twice as a result of the quashing of the final and binding judgment in his criminal case under the supervisory review procedure. He further complained that the re-opening of his case had not been justified unde r Article 4 § 2 of Protocol No. 7. He invoked in substance Article 6 § 1 of the Convention with respect to the same complaint.

In later correspondence, the applicant complained that his pre-trial detention was not reviewed by a court , in viola tion of Article 5 §§ 1 (c) and 3 of the Convention , and that he had had no effective remedy f o r his complaint under Article 4 of Protocol No. 7 , as required by Article 13 of the Convention. He also maintained, invoking Article 6 § 1 of the Convention, that the Regional Court was not impartial given that the president of the court, who lodged the request for supervisory review, later participated in examination of this request.

THE LAW

1. The Government noted that the final decision in the criminal case against the applicant, given by the Sup reme Court of Ukraine on 9 July 2002 , imposed a lesser sentence than that original ly decided by the N ovozavodsky District Court on 6 November 2000 . Therefore, in the Government ' s opinion, the applicant could no longer claim to be a victim .

The applicant maintained that , neither in the decision of the Supreme Court of Ukraine nor in any other document , had the unlawfulness of supervisory review procedure in the criminal proceedings against him been recognised , nor any compensation o ffered to him. The applicant believed that he still could claim to be a victim of the alleged violations .

The Court recalls that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the individual of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , judgment of 25 June 1995, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania , judgment of 28 September 1999, Reports 1999-VI, § 44).

In the instant case, it appears from the documents in the Court ' s possession that there was neither an acknowledgment nor redress for the alleged violation of the Convention provisions by the domestic authorities.

The Court concludes that the applicant may still claim to be a “victim ” within the meaning of Article 34 of the Convention. Accordingly, the Court dismisses the Government ' objection.

2. The applicant complained under Article 4 of Protocol No. 7 that he had been tried twice as a result of the quashing of the final and binding judgment in his criminal case under the supervisory review procedure. He further complained that the re-opening of his case was not justified under Article 4 § 2 of Protocol No. 7 .

This provision reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”

In the light of its findings in the Nikitin v. Russia case (no. 50178/99, §§ 46-47 , judgment of 20 July 2004), the Court recalls that , for the purpose s of the ne bis in idem principle, supervisory review may be regarded as a special type of re-opening which is compatible with Article 4 § 2 of Protocol No. 7 and not a “second trial”. The Court considers, however, that the issue should be considered under Article 6 § 1 of the Convention rather than Article 4 of Protocol No. 7.

3. The applicant ' s complaint about the supervisory review procedure raised in substance an issue under Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”

The Government maintained that the quashing of the final judgments in the criminal case against the applicant under the supervisory review procedure was carried out in order to ensure the effectiveness of the criminal justice system. The reason for the quashing was an incorrect qualification of the applicant ' s actions by the courts. Therefore, in the Government ' s opinion, there was no violation of Article 6 § 1 of the Convention.

The applicant disagreed, stating that the quashing of the final judgments in his case violated the principle of legal certainty.

The Court reiterates that , al though a mere possibility to re-open a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6, certain special circumstances of the case may reveal that the actual manner in which it was used impaired the very essence of a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see Nikitin v. Russia , cited above, §§ 54-57).

The Court considers, in the light of the parties ' submissions, that this complaint under Articl e 6 § 1 of the Convention raises serious questions of fact and law, the determination of which requires an examination on the merits. The Court concludes therefore that it is not manifestly ill-founde d within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. In his letters of 22 September 2003 and 6 February 2005, the applicant raised additional complaints about the same criminal proceedings under Article 5 §§ 1(c) and 3 ( the lawfulness of his pre-trial detention), Article 6 § 1 ( a lack of impartiality of the Chernigiv Regional Court ), and Article 13 of the Convention ( a lack of appeal against the decisions of the Presidium of the Chernigiv Regional Court ).

The Court notes that these complaints relate to events or decisions which interv ened in the period between July 2000 and March 2001 , which is more than six months before the y were submitted to it . It follows that these complaints have been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares admissible, without prejudging the merits, the applicant ' s complaint under Article 6 § 1 of the Convention concerning the re-opening of the criminal case under the supervisory review procedure ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] Around 60 euros (“EUR”)

[2] Around EUR 150